Court File and Parties

Court File No.: Brampton 594/10 Date: 2012-04-16 Ontario Court of Justice

Between: Denise Simoes Dias, Applicant

— And —

Oscar Humberto Rego Ribeiro, Respondent

Before: Justice J.A. Maresca

Heard in Chambers

Ruling on Costs released on April 16, 2012

Counsel: Marvin Kurz, for the applicant Oscar Humberto Rego Ribeiro, on his own behalf

Decision

MARESCA, J.:

[1] This matter came before the Ontario Court of Justice by way of Application seeking, inter alia, custody of two children, child support, and spousal support. Despite the passage of 5 months since the initial case conference, and a number of subsequent conferences, the matter remains unresolved. The Applicant brought a motion for temporary spousal support, and the Respondent brought a motion to transfer the proceedings to the Superior Court of Justice, arguing that there were property issues to be adjudicated, and that all matters should be heard together.

[2] The motions came before me on February 7, 2012. The Ontario Court of Justice application was stayed, and the matter was transferred to the Superior Court of Justice. Before transferring the issue of spousal support, the Court agreed to hear the motion regarding temporary support for the Applicant. The matter was argued, and oral reasons were given. The Applicant was awarded temporary spousal support in the amount of $559 per month, in addition to the $973 per month award made for temporary child support in November of 2011. The Applicant sought costs of the motion, and the Court ordered the parties to provide written submissions on the issue. This is the decision regarding costs.

[3] The awarding of costs is governed by Rule 24 of the Family Court Rules. Rule 24(11) sets out the factors to be considered in determining costs. No formal offers to settle were filed by either party, although settlement was discussed. Given the disparity of income between the parties, and the circumstances in which the Applicant was living (with her parents) due to the fact that she could not afford to rent her own accommodations, the issue of spousal support should have been settled without the need for a motion.

[4] The results on the motion were mixed. The case as a whole was indeed transferred to the Superior Court of Justice, which the Applicant opposed. Spousal support was ordered on a temporary basis, although not in the amount requested by the Applicant. The Respondent has made it abundantly clear that he did not feel that spousal support should have been ordered; it was clear that no amount of spousal support would have been acceptable to him. For that reason, the motion was necessary.

[5] The matter was not complex, although a factum was required.

[6] The Respondent, who is unrepresented, raises several issues in his costs submissions which should be addressed. First, he argues that no costs ought to be awarded on the motion as there were no costs ordered on any of the conferences. Rule 24(10) does direct that costs are to be considered at each step of the proceeding; however, the fact that costs were not ordered previously does not impact on the issue of costs on the motion, which is a new "step in the proceeding".

[7] The second argument is that the Applicant was not in compliance with an order of the court. While the Respondent's submissions do not specifically state what order the Applicant is in breach of, I infer from his prior filings that his position is that the Applicant has not paid her share of the s. 7 expenses for the children. That is an issue for the Superior Court to consider in the totality of the action.

[8] Costs of the motion cannot be left to the Superior Court to determine, as the Respondent suggests; the issue of costs is to be decided by the Justice who has presided over that step in the proceedings.

[9] The award of costs is ultimately in the discretion of the Court. In this case, the Respondent has a significant income, and the Applicant has a very modest income. The Respondent has chosen not to retain counsel; the Applicant has incurred significant legal fees. On balance, the Applicant was largely successful on the motion.

[10] In my view, a nominal award of costs is warranted in this case. Mr. Kurz has submitted a Bill of Costs in the amount of $5,192.15. This amount encompasses the conferences leading up to the motion, as well as the motion itself. I view the motion as a separate step in the proceedings, and am disallowing costs incurred in the steps leading up to the motion.

[11] Costs are fixed in the amount of $2,500, payable by the Respondent to the Applicant forthwith, and shall be enforceable as support.

Released: April 16, 2012

Justice J.A. Maresca